Grieco v. Gozdziak

Appeal from an order of Supreme Court, Erie County (Notaro, J.), entered January 23, 2003, which denied defendant’s motion seeking summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Contrary to the contention of defendant, Supreme Court properly denied his motion seeking summary judgment dismissing the complaint, which was based on the allegation that plaintiff did not sustain a serious injuiy within the meaning of Insurance Law § 5102 (d). Defendant submitted only uncertified and unsworn medical records and reports in support of his motion, and “uncertified, unsworn medical records [and reports] are not in admissible form” (Joseph E.G. v East Irondequoit Cent. School Dist., 273 AD2d 835, 836 [2000]; see Dumont v Peterson Trust, 307 AD2d 709 [2003]). There is no evidence that defendant obtained those documents directly from plaintiffs attorney and thus defendant is not entitled to rely upon them in support of his motion (see Dumont, 307 AD2d at 710; cf. Lowe v Bennett, 122 AD2d 728, 729 [1986], affd 69 NY2d [955] 700 [1986]; Wiegand v Schunck, 294 AD2d 839 [2002]). In any event, even assuming, arguendo, that defendant met his initial burden, we conclude that plaintiff raised an issue of fact whether she met the serious injury threshold by submitting the affidavit of her treating physician (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present — Pigott, Jr., PJ., Pine, Scudder, Gorski and Lawton, JJ.